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Charter - s.10(b) Right to Counsel (3). R. v. Thompson
In R. v. Thompson (Ont CA, 2025) the Ontario Court of Appeal considered Charter s.10(b) right to counsel 'informational duties', here an issue of delay in informing of the right:B. Issue 1: The Delay
[14] Section 10(b) of the Charter guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42.
[15] The motion judge correctly noted that s. 10(b) requires police to inform detainees of their right to counsel “immediately”, subject only to concerns about officer or public safety. He went on, however, to find that there was a safety concern in this case that warranted a 20-minute delay before the appellant was told of his right to counsel. He reasoned as follows:It is my view that the approximately 20-minute delay in providing the right to counsel was justified and reasonable in the circumstances. The apartment unit and the hallway were not secure areas. There were doors to other units on the floor that could be opened at any time. I find that Constable Sirbu had valid concerns that [the appellant] may try to escape or initiate a confrontation while in the hallway. Within a relatively short time of the arrest, [the appellant] was moved to the ground floor and into a police car where he was read his right to counsel. The police car was a safe and secure environment which provided privacy to [the appellant]. [The appellant] spoke with duty counsel within 90 minutes of his arrest. [The appellant] was interviewed only after he spoke with duty counsel.
Safety is a valid reason to delay providing the right to counsel: R. v. Suberu, at para. 42. Once the safety and security issues were dealt with and [the appellant] was placed in the police car, he was read his right to counsel. There was no attempt to elicit information from [the appellant] before he was told of his right to counsel. I am satisfied that the delay in providing the right to counsel was relatively short. The delay was not the product of improper police protocol or a systemic failure, but instead was situation-specific: R. v. Hobeika, 2020 ONCA 750, at para 88. I conclude that there was no breach of [the appellant’s] s. 10(b) Charter rights. [16] The appellant argues that the motion judge erred in finding that the 20-minute delay was Charter-compliant. I agree.
[17] We are dealing here with the informational duties imposed by s.10(b); the requirement that police advise the detainee of the right to retain and instruct counsel without delay. This is usually not a complicated or time-consuming process. Most officers carry a card containing the prescribed language, and it takes but a few moments to convey this information to a detainee.
[18] Therefore, it will be rare for informational obligations to present operational challenges for police. Implementation of the s. 10(b) right by providing access to a telephone may well have to await a controlled environment, so that police can control who is being called, and ensure appropriate privacy. By way of contrast, information about the detainee’s rights can usually be conveyed in short order, at the scene of the arrest, at the same time that the reason for the arrest or detention is explained.
[19] It is no accident that the Charter language of “without delay” has been judicially interpreted to mean “immediately”. As Suberu explains, at para. 40, “the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy”.
[20] The right to counsel is meant to help detainees “regain their liberty[] and guard against the risk of involuntary self-incrimination”: Suberu, at para. 40. These concerns are at play the moment a detention begins. It is then that the detainee is cast in a situation of vulnerability relative to the state. If s. 10(b) is to achieve its purpose of mitigating legal disadvantage and legal jeopardy, detainees must be informed of their rights as soon as the detention arises: R. v. Davis, 2023 ONCA 227, 425 C.C.C. (3d) 80, at para. 41.
[21] This is not to say that informational obligations can never be delayed. Circumstances may be sufficiently dynamic, uncertain, or chaotic to justify waiting until the detainee is in a police cruiser or another controlled location before advising them of the right to counsel. However, barriers to access or “exceptional circumstances” that justify briefly suspending the exercise of the right cannot be assumed. They must be proved: R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, at para. 83. They were not proved in this case. . R. v. Thompson
In R. v. Thompson (Ont CA, 2025) the Ontario Court of Appeal considered the purpose of Charter s.10(b) 'right to counsel':(2) The Purpose of Section 10(b)
[42] It has long been understood that the right to counsel aims to ensure that a detainee understands their rights—chief among them the right to silence—and is aware of how to exercise them during encounters with the police. To stop there, however, is to adopt an impoverished view of s. 10(b).
[43] Courts have increasingly recognized the psychological benefits that flow from a consultation with counsel. Detention is inherently coercive. It renders a person vulnerable to the exercise of state power and in a position of legal jeopardy. Consultation with an independent legal professional can assure the detainee that they are not isolated from the outside world. It can help mitigate the power imbalance inherent in police-citizen interactions by reducing the stress and uncertainty inherent in police detention.
[44] Courts have used the term “lifeline” to compendiously describe these psychological benefits of speaking to counsel. This term—coined by Doherty J.A. in R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103—has been adopted in various authorities, including more recent Supreme Court decisions. For example, in R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para 56, the court approvingly quoted Doherty J.A.’s description of the right to counsel “as a lifeline through which detained persons obtain legal advice and the sense that they are not entirely at the mercy of the police while detained”.
[45] In R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, the court set out a more detailed exposition of how the right to counsel can help reduce the perception of vulnerability that detainees invariably experience. The court stressed the need for detained persons to receive “legal advice regarding the particular situation they are facing, conveyed in a manner that they understand”: Lafrance, at para. 76, quoting Sinclair, at para. 32 (emphases and brackets omitted). Brown J. described as “uncontroversial” the proposition that s. 10(b)’s purpose is “to mitigate the imbalance between the individual and the state”: para. 78. As he put it, the issue in Sinclair “was not whether s. 10(b)’s purpose is to cure that power imbalance, but how it does so”: Lafrance, at para. 78 (emphasis in original).
[46] This court has continued to recognize the psychological importance of counsel as a lifeline to detainees. As Paciocco J.A. put it, “informational rights are not provided solely as a means of enjoying implementational rights”: Davis, at para. 41. Instead, they provide detained persons with “the immediate assurance that they are not entirely at the mercy of the police”, and “are entitled to a lifeline to the outside world through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation”: Davis, at para. 41 (internal quotations omitted). Other appellate courts have taken a similar approach: see, e.g., R. v. Provencher, 2025 QCCA 505, at paras. 112-13, per Cournoyer J.A.
[47] Finally, the right to counsel does not only benefit those who are detained by police. There is a broader societal interest in promoting the interests protected by s. 10(b). “Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law”: R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 80. . R. v. Thompson
In R. v. Thompson (Ont CA, 2025) the Ontario Court of Appeal considered Charter s.10(b) right to counsel, here where the duty may extent to two consultations with counsel - not just one:[1] This case raises various issues, among them the relationship between the right to counsel and the police power to strip search incident to arrest. In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, the Supreme Court of Canada ruled that a single consultation with counsel will usually suffice to fulfill the purpose of s. 10(b) of the Canadian Charter of Rights and Freedoms, but there are exceptions. The court identified three situations in which a detainee should be given another opportunity to speak with a lawyer, stressing that the list was non-exhaustive.
[2] The list should be augmented to include situations in which a detainee is going to be strip searched incident to arrest. Given the highly invasive nature of strip searches, the right to reconsult is, in that context, necessary to fulfill the purpose of s. 10(b) of the Charter.
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C. Issue 2: Reconsultation
[30] The appellant argues that the police were obligated to provide him with a fresh opportunity to consult with counsel before he was strip searched. The appellant says that given the inherently invasive nature of a strip search, it should carry with it a right to reconsult counsel. This argument was advanced in the court below, but was not ultimately addressed by the motion judge in his Charter ruling.
[31] The appellant has again raised this issue on appeal. I am persuaded that given the purpose of the right to counsel, and the inherently invasive nature of strip searches, a suspect about to be strip searched incident to arrest should have an additional opportunity to speak with a lawyer. In support of this proposition, I will begin by examining the ruling in Sinclair and subsequent s. 10(b) cases. I will then turn to the purpose of s. 10(b), the nature of strip searches, and conclude by examining why the right to reconsult arises and is important within this context.
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(1) The Ruling in Sinclair
[32] In Sinclair and its companion cases, the Supreme Court held that as a general rule, s. 10(b) entitles a detainee to one opportunity to consult counsel. But like most rules, this one has exceptions. The majority acknowledged that the purpose of s. 10(b) may require a right to reconsult counsel, either because new non-routine procedures are being employed by police, or because there is reason to believe that the original consultation did not achieve its intended purpose. The majority identified three categories that will normally trigger a right to reconsult:1. New procedures involving the detainee;
2. A change in the jeopardy facing the detainee; or
3. Reason to question the detainee’s understanding of their s. 10(b) right. [33] These circumstances will generate a right to reconsult when they are “objectively observable”: Sinclair, at para. 55.
[34] While identifying only three categories of exception, the majority stressed that the list of categories was “not closed”, thus signalling that it might be supplemented in future cases: Sinclair, at para. 49.
[35] How does one determine whether a category should be added to the list? As reflected in the following passages from the majority decision, the critical question is whether a reconsultation with counsel is necessary to fulfill the purpose of s. 10(b):The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.
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The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.
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The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee’s decision to cooperate with the police or not is informed as well as free. Our colleague’s proposed test does not, in our respectful view, capture the circumstances in which additional advice may be required.
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We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached. [Emphases added]. [36] Thus, the scope of the right to reconsult counsel is determined by reference to the purpose of s. 10(b). The purposive approach has long been a mainstay of constitutional jurisprudence in Canada. In the recent case of John Howard Society of Saskatchewan v. Saskatchewan (Attorney General), 2025 SCC 6, the Chief Justice remarked upon the Supreme Court’s “consistent direction that judges must interpret the Charter in a generous, rather than a formalistic, manner that gives effect to the purpose of the right in question”: at para. 6.
[37] While the purposive approach dictates a generous interpretation of Charter rights, it does not exclusively favour the claimant’s interests. Rather, the ultimate objective is to strike a balance between competing individual and state interests. This is reflected in the standard of reasonableness, which calls for consideration of both sides of the constitutional equation: the rights of the individual to be let alone, to walk away, or to remain silent; balanced against the societal interest in effective detection, investigation, and prosecution of crime.
[38] The reasonableness standard governs police compliance with s. 10(b) of the Charter: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1241. Police must provide a detainee with a reasonable opportunity to exercise the right to counsel. What is reasonable will depend on a number of case-specific factors, relating to both the needs of the detainee and the broader needs of society. The right to counsel is not absolute. A detainee is expected to be diligent in the exercise of their rights, failing which the police obligation to hold off will be suspended. A detainee may not be at liberty to insist on the right to counsel of choice when duty counsel is available. And, as Sinclair holds, a detainee may not halt a police interview at will merely by asking for another opportunity to speak to a lawyer.
[39] The need for balance was at the heart of Sinclair. The majority rejected a model that would permit an unfettered right to reconsult counsel, reasoning that it “would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone”: at para. 63. As the majority put it, “[t]he purpose of the right to counsel is not to permit suspects, particularly sophisticated and assertive ones, to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or for whatever reasons, made impossible to obtain”: Sinclair, at para. 58, quoting R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368, at p. 385 (internal quotation marks and brackets omitted).
[40] In opting for a more restrictive approach, the majority considered (1) that the detainee is usually a valuable source of information for investigating officers; (2) that the detainee should not be empowered to halt an interview at will simply by asking for a lawyer; and (3) that the ultimate power in the interview room resides with the detainee, because he or she can remain silent. These considerations led the court to find that, generally speaking, a single consultation with counsel will suffice to achieve the purpose of the s. 10(b) right.
[41] Guided by Sinclair and its progeny, I suggest that if a new category of circumstance is to be added to the non-exhaustive list, the court must entertain two questions. First, is providing an opportunity to reconsult necessary to fulfil the purposes of s. 10(b)? Second, does providing an opportunity to reconsult strike a proper balance between individual rights and societal interests?
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(4) Sinclair Meets Golden
[58] The foregoing discussed, in sequence, the purpose of s. 10(b) of the Charter and the nature of the strip search process. That discussion sets the stage for considering how the two interact with one another. What happens when one reads Sinclair with Golden? The answer, I suggest, is clear. The list in Sinclair must be augmented to confer a right to reconsult before a strip search incident to arrest. This is necessary to fulfill the purpose of s. 10(b) of the Charter and strikes a proper balance between competing interests.
[59] In Sinclair, the court recognized that some non-routine procedures will confer a right to reconsult. As the court put it when discussing “new procedures involving the detainee”, at para. 50 (internal citation omitted):The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary. [60] A strip search is, or at least should be, non-routine. However, it differs from the procedures alluded to in the above passage. Line-ups and polygraphs require the detainee’s consent. Where consent is required, the right to counsel is triggered to assist the detainee in deciding whether or not to accede to the police request. The same is true of police requests for phone passwords, “because as a practical matter, the police would not be able to access the cell phone without obtaining the password from the [detainee]”: R. v. Azonwanna, 2020 ONSC 5416, at para. 161.
[61] Consent is not the issue when it comes to strip searches. When police have proper grounds, a strip search does not technically require consent. It does not follow, however, that s. 10(b) is of no value here. Consent is only part of the equation. As long ago as 1989, the Supreme Court observed that the right to counsel is not just about deciding whether to consent. In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, Wilson J. commented that counsel’s role is broader than just advising a suspect of their options. Rather, as she put it, “counsel can provide reassurance and advice to a person who may be subjected to a highly invasive procedure”: Debot, at p. 1174. A strip search clearly meets this description.
[62] In R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, the court addressed the role of the right to counsel in connection with a strip search at the border. The statute provided that a detainee could seek review of a decision to strip search, and that was one reason to insist on the right to counsel in this context. However, it was not the only reason. The court observed, at pp. 530-31, that counsel could have addressed the detainee’s uncertainty, and could have assured her that the police were lawfully entitled to insist that she remove her clothing:It is clear from the foregoing that the right to counsel has an important impact on the execution of the search. Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice. Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing. Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant. [63] The British Columbia Court of Appeal relied on Simmons in R. v. Carpenter, 2001 BCCA 31, 151 C.C.C. (3d) 205, to conclude that the failure to provide the right to counsel before a strip search at the border violated s. 10(b). The court opined, at para. 35, that “given the extremely invasive nature of a strip search, an accused must be well advised of their rights and choices” by consulting with counsel, who “could assist in outlining the search procedure and could assure the accused of the officers’ right to insist that she or he remove their clothing”.
[64] Thus, the right to reconsult is not diminished merely because consent may not be required for a strip search. There are other sound reasons to find that a strip search revives the right to consult with counsel.
[65] From a behavioural perspective, it may be important for a detainee to understand that despite the intrusiveness of a strip search, he or she continues to enjoy, and can continue to exercise, the right to silence. It may also be important for the detainee to know that refusal to comply with a strip search can result in a more intrusive procedure. A strip search does not require consent, but may well require cooperation. As the Supreme Court has explained, “if it appears during the course of a strip search that the detainee is concealing a weapon or evidence inside a body cavity, and the detainee refuses to co-operate, then in order to obtain the object in question the police officer must likely exceed the realm of the strip search and enter the realm of the body cavity search”: Golden, at para. 87.
[66] There are other reasons why the right to counsel is important even in circumstances where withholding consent is not, legally speaking, an option. A detainee who has a chance to speak to counsel may elect to disclose the presence of hidden contraband, which could obviate the need to conduct a strip search: McGuffie, at para. 81. That, in turn, may help ensure that any contraband is extracted with minimal health risks: R. v. Tonkin, 2020 ONSC 5206, at para. 32.
[67] Beyond practical advice about the exercise of rights, counsel can provide psychological assurance to a detainee about to experience a strip search. Borrowing from the language in Ward, at para. 64, counsel can mitigate the potential “injury to an individual’s intangible interests”. The psychological value of the right to counsel has its own intangible quality that “should not be underestimated”, and is no less important merely because it is difficult to measure or quantify: Rover, at para. 45. Access to counsel in advance of a strip search can help assure the detainee that the police are legitimately entitled to engage in this conduct, and that it is not intended to humiliate or sexualize them. Counsel might assure the detainee that the search is, by law, presumptively required to be carried out by an officer of the same sex, among other safeguards. These are just a few examples.
[68] There is another reason why the right to counsel should be revisited before a strip search: the advice obtained during an initial consultation may not have contemplated a strip search on the forensic horizon. Because strip searches are non-routine, counsel may not anticipate the possibility during an initial call. In this way, strip searches stand in contrast to more conventional and routine procedures, such as photographing and fingerprinting, which are more likely to be within the contemplation of counsel when advising an arrestee about whether to cooperate with the police. When this is so, the detainee’s initial legal advice may be rendered inadequate.
[69] In Lafrance, at para. 79, the court commented that individual vulnerabilities, coupled with developments in the police investigation, may “render[] a detainee’s initial legal advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police”. In those situations, Sinclair requires an additional consultation “to even the playing field”.
[70] Of course, not every non-routine post-arrest procedure will trigger a right to reconsult counsel. What sets strip searches apart is that they are both non-routine and highly invasive. It is important that the detainee have access to advice that is tailored to the looming strip search, even if they have already consulted with counsel. A detainee who waived the original right to consult with counsel may reconsider their position when faced with the prospect of removing their clothing for a bodily search.
[71] Finally, the right to reconsult counsel might incidentally help reduce the number of unauthorized or improperly conducted strip searches by injecting a pause into the process. Knowing that a lawyer has been consulted, police might be more inclined to follow proper procedures. They might view their grounds to search with a more critical eye and reconsider when grounds are uncertain. Once a strip search has been carried out, the impact on the detainee cannot be undone. Recognizing a right to reconsult could help to achieve the constitutional objective of preventing unjustified intrusions before they occur.
(5) The Balance of Competing Interests
[72] Having found that a right to reconsultation is necessary to achieve the purpose of s. 10(b), I will now turn to the question of whether such a right strikes an appropriate balance between competing individual and state interests. I conclude that it does. In Sinclair, the majority adopted a restrictive approach to reduce the ability of a detainee to thwart legitimate law enforcement objectives. The court was concerned that if the right to reconsult were broader, a detainee could use it as a sword, rather than a shield. The detainee could ask to re-consult with counsel to halt an interview, avoid answering pointed questions, or otherwise obstruct the questioning process. For that reason, the majority in Sinclair held that the right to reconsult would only arise in designated, objectively discernable circumstances.
[73] Recognizing a right to reconsult in advance of a strip search does no violence to the balance Sinclair struck. Offering a right to counsel before a strip search will not generally empower a detainee to derail an interview by insisting on speaking to a lawyer on a whim. The triggering event—the decision to strip search—will be objectively discernable. Police will have control over the timing of the decision to strip search, just as they have control over the timing of questioning. It will be open to them to conduct the process in a manner that does not interfere with other investigative processes. If the decision to strip search arises during the course of an interview, an interruption will be appropriate to facilitate a right to reconsult counsel. However, that does not give the detainee the tools to manipulate or obfuscate the interview itself.
[74] Thus, conferring a right to reconsult in advance of a strip search maintains the balance struck by Sinclair and its progeny. The call to counsel can serve a number of tangible and intangible benefits for the detainee, while imposing a relatively minimal burden on police investigators.
(6) Some Final Observations
[75] I will offer some final observations before turning to the circumstances of this case.
[76] First, implementing this right to reconsultation will depend on the prevailing circumstances. The extent to which a detainee is entitled to counsel of choice, the length of time that police must hold off, the need to preserve evidence, and the impact of exigency will call for case-specific and fact-dependent determinations.
[77] Second, since the events in this case, the TPS has amended its policy to provide a renewed right to counsel before a strip search. While a positive development, I attach no significance to the change in that service’s policy. The constitutional issue is governed by legal principle, not police policy.
[78] Third, the principles set out above apply where a strip search is being conducted incident to arrest, to search for weapons or evidence. They may not apply as categorically when a strip search is used to prevent contraband from entering a custodial setting. In Golden, the court distinguished between strip searches incident to arrest, and strip searches aimed at maintaining the safety and security of jails. The court noted that in contrast to searches incident to arrest, there is a “greater need to ensure that [detainees entering the prison population] are not concealing weapons or illegal drugs on their persons prior to their entry into the prison environment”: Golden, at para. 96. The court went on to find that in the case of short-term detentions, “legitimate concerns” about detainees concealing weapons must be addressed on a case-by-case basis: Golden, at paras. 96-97.
[79] Finally, the appellant relies on McGuffie, where Doherty J.A. criticized police for failing to provide a right to consult counsel before subjecting the appellant to a strip search. However, McGuffie is not directly on point, because the detainee in that case had never been given an opportunity to consult with counsel once he was detained. He was clearly entitled to that opportunity, not just because of the strip search, but because he had never received it. McGuffie is obviously highly persuasive authority, but it does not speak to the issue of re-consultation with counsel as it arises in this case. . R. v. Babbington
In R. v. Babbington (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction for first-degree murder.
Here the court considered the law of the admissibility of statements and voluntariness:[10] We are not persuaded by this submission. The trial judge was well aware of the overarching principles relating to the voluntariness of statements made by accused persons. In his ruling on voluntariness, he said, at para. 44:The leading case on the voluntariness of statements is R. v. Oickle (2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3 (S.C.C.)). In that decision, the Supreme Court outlined the four requirements for a statement to be voluntary:a) There cannot be any threats or inducements offered to the person making the statement.
b) There cannot be oppression. A statement cannot be voluntary if the will of the person making it has been overborne.
c) The accused person must have an operating mind.
d) There cannot be any police trickery. [11] After the appellant was arrested, he was provided with, and exercised, his right to counsel. However, as the lengthy police interview continued, on about 60 occasions he asked to speak to his lawyer again. The police did not accede to his request.
[12] We see no error in the trial judge’s conclusion that the appellant exercised free will throughout the interview.
[13] There is no constitutional right for an accused to speak to counsel a second time, absent certain recognized exceptions. For instance, a second opportunity to speak to counsel may arise if there are changed circumstances resulting from new procedures involving the detainee, a change in the jeopardy facing the detainee, or reason to believe that the first information provided was deficient: R. v. Sinclair, 2010 SCC 35, at para. 2. None of these was present in the police interview of the appellant.
[14] Accordingly, the trial judge was entitled to conclude as he did in his ruling on voluntariness, at para. 97:The accused has a right to remain silent. However, Singh, supra also recognized (at paragraph 28) that the importance of police interrogation was also a consideration, and that there was no right “not to be spoken to” by the police. I view [the interviewing officer’s] conduct as well within the proper boundaries of police interrogation pursuant to Singh. [15] We see no error in the trial judge’s conclusion that the appellant knew the jeopardy he faced when he spoke to his counsel the first time and that, quite simply, his will was not overborne.
[16] The appellant’s submission relating to inadequate access to bathroom breaks during the interview at the police station is very weak. As the appellant said, he “leaked” into his pants shortly after his arrest and he urinated three times into a cup during the interview. However, the appellant was drinking a large amount of water and he had frequent bathroom visits during the interview. When the appellant used a cup in the interview room, he gave the police virtually no notice that he needed to urinate. Indeed, the appellant had been taken to the washroom five times to urinate before he first used a cup. That cup was used not even two hours after the fifth washroom break and after the officer told the appellant to “sit tight” and then left the room for a short bit. Prior to urinating, the appellant sang for a bit, tapped on the table, yelled out “Ah. Sir. Fuck.” And then loudly yelled, “I’m gonna pee in a cup” and then seconds later, urinated in a cup.
[17] In his voluntariness ruling, the trial judge dealt with this issue at some length. He concluded at para. 114:When I step back and look at all of the issues relating to washroom breaks, I conclude that the officers provided appropriate washroom breaks, and that there was no conduct that was oppressive or would otherwise have affected the voluntariness of the accused’s statement. [18] We agree with this conclusion.
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